Founders Insurance Company v. American Country Insurance Company

• Decision Date: 08 May 2006
• Docket Number: No. 1-05-1869.,1-05-1869.
• Citation: 851 N.E.2d 120
• Parties: FOUNDERS INSURANCE COMPANY, Plaintiff-Appellee, v. AMERICAN COUNTRY INSURANCE COMPANY, Defendant-Appellant and Counterdefendant (Kwaku Dankyi Apau, Defendant and Counterplaintiff; Joseph N. Bingue and Best Taxi Service, Inc., Defendants).
• Court: United States Appellate Court of Illinois

851 N.E.2d 120

FOUNDERS INSURANCE COMPANY, Plaintiff-Appellee, v. AMERICAN COUNTRY INSURANCE COMPANY, Defendant-Appellant and Counterdefendant (Kwaku Dankyi Apau, Defendant and Counterplaintiff; Joseph N. Bingue and Best Taxi Service, Inc., Defendants).

No. 1-05-1869.

Appellate Court of Illinois, First District, First Division.

May 8, 2006.

COPYRIGHT MATERIAL OMITTED

Shari Shelmadine of The Law Office of Shari Shelmadine, for Plaintiff.

Alvin R. Becker and Katherine A. Grosh of Beerman, Swerdlove, Woloshin, Barezky, Becker, Genin & London, Chicago, for Defendant.

Justice McBRIDE delivered the opinion of the court:

The defendant, American Country Insurance Company (American Country), appeals from the entry of summary judgment in favor of the plaintiff, Founders Insurance Company (Founders), and from the denial of its cross-motion for summary judgment. The main question on appeal is whether sections 8-101, 8-114 and 8-116 of the financial responsibility law applicable to Illinois taxicab companies (625 ILCS 5/8-101, 8-114, 8-116 (West 1998)) prevent a taxicab company's insurer, in this instance, American Country, from denying a claim for personal injuries caused by the negligent operation of a cab that was not specifically endorsed in the insurance contract. The trial court determined that the cited sections of the statute preempted contract language indicating the cab company would be insured only for the vehicles it asked to be included in the policy.

The relevant facts are undisputed. American Country, of Chicago, Illinois, issued a written commercial transportation insurance policy to Best Taxi Service, Inc., of Evanston, Illinois (Best Taxi), which stated that under specified circumstances, American Country would pay for liability resulting from the ownership, maintenance or use of covered autos. Because the contract indicated the definition of "covered autos" applicable to Best Taxi was the seventh in a list of potential definitions, the coverage is sometimes referred to as symbol 7 coverage. The contract specified that under symbol 7 coverage, "covered autos" were only those vehicles "specifically described" in a schedule of vehicles attached to the contract and that subsequently acquired vehicles would be added to the policy only if Best Taxi notified American Country within 30 days of their acquisition. The schedule of vehicles attached to the contract specified the year, make, model, and unique Vehicle Identification Number (VIN) of 23 Chevrolets, Fords, and Lincolns in Best Taxi's fleet, and various endorsements were issued during the 12-month coverage period beginning January 1, 1999, to add or delete specific vehicles from the policy.

On February 20, 1999, at approximately 12:45 p.m., a Best Taxi cab that Joseph N. Bingue was driving northbound on Artesian Avenue in Chicago collided with a Honda Accord that Kwaku Dankyi Apau was driving westbound at or near 2425 West Granville Avenue. A report filed with the local police department includes the make, model, year and VIN of the cab Bingue was operating. That cab, a 1991 Chevrolet station wagon, does not appear on the schedule of vehicles or any of the subsequent endorsements that added vehicles to the American Country policy.

Apau filed a personal injury suit in the circuit court of Cook County, was referred for arbitration, and obtained a default judgment against Best Taxi in the amount of $4,500 plus costs. When Apau contacted American Country about the judgment, American Country told him that it never endorsed the 1991 Chevrolet station wagon that was involved in the collision and that it was not liable for his judicially determined loss. Apau then submitted a claim for uninsured motorist benefits from his insurer, Founders, of Des Plaines, Illinois. Founders, however, wrote to the Illinois Department of Transportation (IDOT) seeking confirmation that the cab was insured on the accident date and was notified by the Department, "Taxi's [sic] are required to maintain an insurance filing with the Office of the Secretary of State before a license may be issued. Therefore, Joseph Bingue, operator and Best Taxi, owner of the vehicle are considered in compliance with the provisions of the Safety Responsibility Law."

Next, Founders filed this declaratory judgment action against the two drivers, the taxicab company, and the taxicab company's insurer. Founders sought a determination that Apau was not entitled to uninsured motorist benefits from Founders because the American Country policy was in effect and Apau was not involved with an "uninsured motorist" within the meaning of the Founders policy. The insurance companies' cross-motions for summary judgment focused on whether American Country was attempting to enforce a contractual definition of "covered autos" that conflicted with sections 8-101 and 8-114 of the financial responsibility law that is applicable to taxicab companies. 625 ILCS 5/8-101, 8-114 (West 1998). Founders tendered a copy of the letter from IDOT indicating Bingue and Best Taxi "are considered in compliance with the provisions of the Safety Responsibility Law," and American Country provided the court with an affidavit from William J. Weiss, assistant vice president and general claims counsel of American Country, attesting that neither Best Taxi nor anyone acting on its behalf ever notified American Country that it wanted coverage for the 1991 Chevrolet station wagon.

Section 8-101 of the Illinois Vehicle Code states in relevant part:

"Proof of financial responsibility — Persons who operate motor vehicles in transportation of passengers for hire. It is unlawful for any person, firm or corporation to operate any motor vehicle along or upon any public street or highway in any incorporated city, town or village in this State for the carriage of passengers for hire, accepting and discharging all such persons as may offer themselves for transportation unless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, proof of financial responsibility provided in this Act. * * *" 625 ILCS 5/8-101 (West 1998).

Section 8-114 of the Illinois Vehicle Code states:

"Issuance of license upon proof of financial responsibility. The Secretary of State shall issue to each [taxicab company] who has in effect proof of financial responsibility as required by Section 8-101 * * *, a certificate for each motor vehicle operated by such [taxicab company] and included within the proof of financial responsibility. Each certificate shall specify the Illinois registration plate and registration sticker number of the vehicle, a statement that proof of financial responsibility has been filed, and the period for which the certificate was issued." 625 ILCS 5/8-114 (West 1998).

In addition, section 8-116 of the Illinois Vehicle Code provides:

"Any person who fails to comply with the provisions of this Chapter, or who fails to obey, observe or comply with any order of the Secretary of State or any law enforcement agency issued in accordance with the provisions of this Chapter is guilty of a Class A misdemeanor." 625 ILCS 5/8-116 (West 1998).

As indicated above, the trial court resolved the cross-motions in Founders' favor, stating:

"Absent [sections 8-101, 8-114 and 8-116 of] the financial responsibility statute, there would be no question that since the 1991 Chevy [taxicab] is not a covered auto under the American Country policy, the loss would not be covered by the American Country policy. However, when courts are faced with similar compulsory insurance statutes, conditions in the contract that would typically defeat a claim for coverage, `although effective as between insurer and insured, cannot be asserted against third-party claims' since the claimants are `statutory beneficiaries whose rights cannot be defeated by the terms of the contract to which they are not parties.' Great American Ins. Co. v. Brad Movers, 65 Ill.App.3d 357, 362 [22 Ill.Dec. 303, 382 N.E.2d 623] (1st Dist.1978) [(Brad Movers)]. Thus, this Court finds that [the insurer] American Country is liable for the loss as to [the third-party claimant] Apau pursuant to the statute and [the insurer] must enforce its rights under the policy against the insured rather than the third-party claimant. Id.; see also [American Country Insurance Co. v.] Wilcoxon, [127 Ill.2d 230, 239 (1989) (Wilcoxon II).]"

The court also denied American Country's subsequent motion to reconsider, emphasizing its conclusion that the purpose of the financial responsibility statute "is to `insure that members of the public, injured through the negligence of cabdrivers driving cabs owned by others, are not left uncompensated for their injuries.' [Wilcoxon II, 127 Ill.2d at 239, 130 Ill.Dec. 217, 537 N.E.2d 284]."

Neither court order, however, resolved a counterclaim Apau filed against American Country, in which he contended that if Founders prevailed in its declaratory judgment action, American Country should be held liable for the unsatisfied $4,500 judgment he obtained against Best Taxi. Accordingly, the court entered a Rule 304(a) finding so that immediate appeal could be taken. 155 Ill.2d R. 304(a).

American Country now argues the summary judgment ruling should be reversed because the clear and unambiguous terms of its written policy indicated Best Taxi was insured only for vehicles specifically described in the contract, it is undisputed that the 1991 Chevrolet station wagon was never made part of the contract, and the terms of the contract are not in conflict with the cited sections of the financial responsibility statute and must be enforced as written. Founders responds in part that the trial court's ruling was well reasoned and that Wilcoxon II, Brad Movers, and the cited statutory sections are not the only authorities supporting the decision. Wilcoxon II, 127 Ill.2d 230, 130 Ill.Dec. 217, 537 N.E.2d 284, Brad Movers, 65...